“make available condition”

Bain & Company Inc., Haryana vs. DCIT, Int. Taxation, Haryana

In the result, the appeal is allowed as indicated above

Bench: Shri G.S. Pannu, Presidenet & Shri Saktijit Dey, Vice-Assessment Year: 2018-19 Bain & Company, Inc. Vs. Deputy/Acit, International Tax, 131, Dartmouth Street, Gurgaon, Dartmouth Street Boston, Haryana Massachusetts, Usa, Foreign United States, C/O Bain & Company India Pvt. Ltd., 20Th Floor, Building No.10, Tower C, Dlf Cyber City, Phase-Ii, Gurgaon, India, 122 002 Pan :Aaecb9564H (Applicant) (Respondent)

definition of FIS under the Tax Treaty is restricted in comparison to the Act as the treaty provisions provide for fulfillment of make available condition. He submitted, in the first place, the services provided by the assessee are basic business advisory services, hence, not technical in nature. In this context ... category of consultancy services, however, the most crucial condition to be satisfied to qualify as FIS under Article 12(4)(b) is the make available condition. In the facts of the present appeal, the departmental authorities have not brought any material on record to demonstrate that while rendering services

Spi Global Us Inc, Puducherry vs. ACIT, Circle-3(1)(2), International Taxation, New Delhi

In the result, appeal of the assessee is allowed

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2019-20

However, in the instant case in AY 2019-20 the Ld. DRP held that the sub-contracting charges are taxable as FIS since make available condition is satisfied. In holding so, the Ld. DRP failed to appreciate that the Ld. DRP in the case of LW US held that know

Netafim Ltd., Gujarat vs. DCIT Circle- 2(2)(2), International Taxation, New Delhi

In the result, appeals are allowed

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2014-15 With Assessment Year: 2015-16

more restricted compared to India – Israel DTAA as the definition of FTS under India – Portugal DTAA speaks of fulfillment of ‘make available’ condition. 4. It was submitted by the assessee that since while rendering services under IT and SAP service agreement, the assessee had not made available any technical knowledge ... more restricted definition/scope of India – Portugal would be applicable to India – Israel DTAA. The Assessing Officer observed, in absence of such notification, the ‘make available’ condition under India – Portugal DTAA cannot be automatically imported to India – Israel DTAA. Thus, ultimately, he held, since, Article 13 of India – Israel DTAA does

Netafim Ltd., Gujarat vs. DCIT Circle- 2(2)(2), International Taxation, New Delhi

In the result, appeals are allowed

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2014-15 With Assessment Year: 2015-16

more restricted compared to India – Israel DTAA as the definition of FTS under India – Portugal DTAA speaks of fulfillment of ‘make available’ condition. 4. It was submitted by the assessee that since while rendering services under IT and SAP service agreement, the assessee had not made available any technical knowledge ... more restricted definition/scope of India – Portugal would be applicable to India – Israel DTAA. The Assessing Officer observed, in absence of such notification, the ‘make available’ condition under India – Portugal DTAA cannot be automatically imported to India – Israel DTAA. Thus, ultimately, he held, since, Article 13 of India – Israel DTAA does

Inspectorate (Singapore) Pte. Ltd, Kolkata vs. ACIT, International Taxation, Circle-2(1)(1), New Delhi

In the result, appeal is dismissed

Bench: Shri Saktijit Dey & Dr. B.R.R. Kumarassessment Year: 2014-15 & Assessment Year: 2015-16

perused the materials on record. The only reason on which the assessee has objected taxability of the receipts as FTS is that the make available condition in terms of Article 12 of India – Singapore DTAA is not fulfilled. However, from the observations of learned DRP, it is noticed that similar

Inspectorate (Singapore) Pte. Ltd, Kolkata vs. ACIT, International Taxation, Circle-2(1)(1), New Delhi

In the result, appeal is dismissed

Bench: Shri Saktijit Dey & Dr. B.R.R. Kumarassessment Year: 2014-15 & Assessment Year: 2015-16

perused the materials on record. The only reason on which the assessee has objected taxability of the receipts as FTS is that the make available condition in terms of Article 12 of India – Singapore DTAA is not fulfilled. However, from the observations of learned DRP, it is noticed that similar

Tpf Getinsa Eurostudios S.L, Gurgaon vs. ACIT, Circle International Taxation, Gurgaon

In the result, the appeal of the assessee on all the grounds is allowed

Bench: Dr. B. R. R. Kumarsh. Yogesh Kumar Usita No. 2400/Del/2022 : Asstt. Year : 2018-19 Tpf Getinsa Euroestudios S.L., Vs Acit, Unit-305, Suncity Business International Taxation, Tower, Golf Course Road, Gurgaon, Sector-54, Gurgaon-122002 Haryana-122002 (Appellant) (Respondent) Pan No. Aaecg9819Q

made available technical knowledge, skill, experience, knowhow, etc. there is no material on record to demonstrate such fact. Therefore, in our view, the make available condition of Article 13(42) (c) of India-UK tax treaty has not been satisfied. In any case of the matter, attribution

Inteva Products Netherlands Bv, Netherlands vs. DCIT, Circle Int. Taxation 2(1)(1), New Delhi

In the result, the appeal of the assessee is allowed

Bench: Dr. B. R. R. Kumarsh. Yogesh Kumar Us

Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs to be satisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made ... enabled the recipient of such services to utilize it independently without the aid and assistance of the assessee. Thus, in our view, the make available condition is not satisfied. Therefore, the payment received cannot be treated as FTS under Article-12(5) of India Netherlands DTAA. Hence, we are inclined

Grant Thornton India LLP, New Delhi vs. JCIT, Range- 52, New Delhi

In the result, the appeal is allowed

Bench: Shri G.S. Pannu & Shri Saktijit Deyassessment Year: 2013-14

payment made to entities based in UK, USA and Singapore, are in the nature of managerial, technical and consultancy services, however, since, the make available condition enshrined in 4 ITA No.274/Del./2019 the treaties is not fulfilled, they will not qualify as FTS. Accordingly, he deleted the disallowance made under ... Germany DTAA. Further, he observed that the definition of FTS under Article 12(4) of the India-Germany Treaty does not speak of make available condition. Accordingly, he upheld the disallowance to that extent. 7. Before us, learned counsel appearing for the assessee submitted that the entity to whom

Cameron (Singapore) Pte Ltd, Coimbatore vs. DCIT, International Taxation, Circle-1(2)(1), New Delhi

In the result, all the appeals are partly allowed

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2013-14 M/S. Cameron (Singapore) Vs. Deputy Commissioner Of Pte. Ltd., Income Tax, C/O- Schlumberger Asia International Taxation, Services Limited, Khasra Room No. 313, Ncr Building, No.2481/838, Village Bhagwan Das Road, Murtala Gala, Nh-15, Jaipur Ahmedabad Road, Barmer, Rajasthan -344001 Pan :Aadcc5259P (Appellant) (Respondent)

learned DRP. They held that major portion of services include training of personnel of ONGC and Cairn India, which means that the make available condition of Article 12(4)(b) is satisfied. Therefore, the receipts are in the nature of FTS. 4.2 Before us, learned counsel appearing for the assessee ... taxable in India, as, the services were rendered from head office in Singapore without the involvement of the project office and further the make available condition under section 12(4)(b) of India – Singapore DTAA is not satisfied, however, before us, learned counsel appearing for the assessee has made

Inteva Product Natherlands Bv, Maharashtra vs. ACIT Circle Int. Taxation-2(1)(1), Delhi

In the result, all the appeals filed by the assessee stand partly allowed

under the DTAA. 8. Without prejudice, he submitted, even assuming that services rendered are in the nature of consultancy services, however, the make available condition has not been satisfied. 9. Learned Departmental Representative strongly relied upon the observations of the Assessing Officer and learned DRP. 10. We have considered rival ... Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs to be satisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made

Inteva Products Netherlands Bv, Netherland vs. ACIT Circle-Iternational Taxation -2(1)(1), New Delhi

In the result, all the appeals filed by the assessee stand partly allowed

under the DTAA. 8. Without prejudice, he submitted, even assuming that services rendered are in the nature of consultancy services, however, the make available condition has not been satisfied. 9. Learned Departmental Representative strongly relied upon the observations of the Assessing Officer and learned DRP. 10. We have considered rival ... Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs to be satisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made

Inteva Products Netherlands Bv, Netherlands vs. ACIT, Circle- 2(1)(1), Intl. Taxation, New Delhi

In the result, all the appeals filed by the assessee stand partly allowed

under the DTAA. 8. Without prejudice, he submitted, even assuming that services rendered are in the nature of consultancy services, however, the make available condition has not been satisfied. 9. Learned Departmental Representative strongly relied upon the observations of the Assessing Officer and learned DRP. 10. We have considered rival ... Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs to be satisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made

Inteva Products Netherlands Bv, Netherlands vs. ACIT, Circle- 2(1)(1), Intl. Taxation, New Delhi

In the result, all the appeals filed by the assessee stand partly allowed

under the DTAA. 8. Without prejudice, he submitted, even assuming that services rendered are in the nature of consultancy services, however, the make available condition has not been satisfied. 9. Learned Departmental Representative strongly relied upon the observations of the Assessing Officer and learned DRP. 10. We have considered rival ... Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs to be satisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made

M/S Netafim Ltd., Gujarat vs. ITO (International Taxation), New Delhi

In the result, both the appeals are partly allowed

Bench: Shri Saktijit Dey & Dr. B.R.R. Kumarassessment Year: 2010-11 With Assessment Year: 2011-12

regard, the assessee submitted that as per India – Portugal and India – Canada DTAAs the definition of FTS is more restricted as it imposes ‘make available’ condition. He submitted, only when technical knowledge, skill, knowhow, etc. is made available to the recipient of service, the payments received will fall within ... Assessing Officer, however, did not accept assessee’s contention. He observed, since, Article 13 of India – Israel DTAA does not speak of any make available condition, it cannot be imported to the treaty. Accordingly, he proceeded to treat the amounts received towards provision of IT and SAP support services

Netafim Ltd., Gujarat vs. DCIT, New Delhi

In the result, both the appeals are partly allowed

Bench: Shri Saktijit Dey & Dr. B.R.R. Kumarassessment Year: 2010-11 With Assessment Year: 2011-12

regard, the assessee submitted that as per India – Portugal and India – Canada DTAAs the definition of FTS is more restricted as it imposes ‘make available’ condition. He submitted, only when technical knowledge, skill, knowhow, etc. is made available to the recipient of service, the payments received will fall within ... Assessing Officer, however, did not accept assessee’s contention. He observed, since, Article 13 of India – Israel DTAA does not speak of any make available condition, it cannot be imported to the treaty. Accordingly, he proceeded to treat the amounts received towards provision of IT and SAP support services

Inteva Products Netherlands Bv, Netherlands vs. ACIT, Circle- 2(1)(1), Intl. Taxation, New Delhi

In the result, the appeal is party allowed

Bench: Shri G.S. Pannu & Shri Saktijit Deyassessment Year: 2014-15

under the DTAA. 4 8. Without prejudice, he submitted, even assuming that services rendered are in the nature of consultancy services, however, the make available condition has not been satisfied. 9. Learned Departmental Representative strongly relied upon the observations of the Assessing Officer and learned DRP. 10. We have considered ... Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs to be satisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made